Migliore v. City of Lauderhill, 81-1491

• Decision Date: 02 June 1982
• Docket Number: No. 81-1491,81-1491
• Citation: 415 So.2d 62
• Parties: Frank MIGLIORE and Anthony Picarelli, Appellants, v. The CITY OF LAUDERHILL, etc., Appellees.
• Court: Florida District Court of Appeals

Page 62

415 So.2d 62

Frank MIGLIORE and Anthony Picarelli, Appellants, v. The CITY OF LAUDERHILL, etc., Appellees.

No. 81-1491.

District Court of Appeal of Florida,

Fourth District.

June 2, 1982.

Rehearing Denied July 1, 1982.

Charles T. Whitelock of Feinstein & Whitelock, Fort Lauderdale, for appellants.

Anthony J. Titone of Titone & Roarke, P. A., Lauderhill, for appellees.

HERSEY, Judge.

Appellants, upon being dismissed from the police department of the City of Lauderhill, filed petitions for writs of mandamus and in the alternative for injunctive relief.

Some familiarity with the facts which occasioned appellants' dismissals is necessary to a resolution of the issues which are presented for our consideration by this appeal.

A convenience store clerk filed written complaints against each of the police officers. After appropriate written notice that an internal investigation had been instituted, appellants, with their attorneys, attended an interview at which they were offered immunity from criminal prosecution in exchange for their testimony concerning the complaints. Each invoked the Fifth Amendment and remained silent.

Subsequently, appellants received written notice to appear at separate times at the office of Internal Affairs. Each attended such a meeting and each was directed by the Chief of Police to submit to a polygraph examination. Each appellant initially indicated a willingness to cooperate but upon being denied the opportunity to confer with an attorney, refused to submit to a polygraph test.

Appellants were then dismissed from the police department and advised of their rights to apply for a hearing before the City's Civil Service Board. Neither appellant applied for a hearing. Rather, appellants sought to have a complaint review board empaneled pursuant to Section 112.532(2), Florida Statutes (1981). Their requests were denied.

The vehicle chosen by appellants to obtain relief (reinstatement and back pay) from the orders of dismissal and to attempt to compel the empanelling of a complaint review board is mandamus. It has long been established that mandamus lies to compel the performance of a specific imperative ministerial duty. It is not an appropriate vehicle for review of a merely erroneous decision nor is it proper to mandate the doing (or undoing) of a discretionary act. Broward County v. Coral Ridge Properties, Inc., 408 So.2d 625 (Fla. 4th DCA 1981). Therefore, of the relief requested by appellants in the trial court, mandamus could apply, if at all, only to obtaining a hearing before the complaint review board.

Section 112.532(2), Florida Statutes (1981), provides:

(2) COMPLAINT REVIEW BOARDS.--A complaint review board shall be composed of three members: One member selected by the chief administrator of the agency; one member selected by the aggrieved officer; and a third member to be selected by the other two members. Agencies having more than 100 law enforcement officers shall utilize a five-member board with two members beingselected by the administrator, two members being selected by the aggrieved officer, and a fifth member being selected by the other four members. The board members shall be law enforcement officers selected from any state, county, or municipal agency within the county.

However, neither the statute nor any other applicable law explicates the function of the board and there is nothing to indicate that a policeman has a right to have his dismissal reviewed by the board. In fact, the only statutory provision containing a possible explanation of the duties of the complaint review board is Section 112.533, which provides: "Receipt and processing of complaints.--Every agency employing law enforcement officers shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such employing agency from any person."

The significant language of that section for our present purposes is contained in the final phrase "complaints received by such employing agency ...." We interpret the statute as providing a law enforcement officer with a means of vindicating his actions and his reputation against unjust and unjustifiable claims made against him by persons outside the agency which employs him. We differ in that respect with the First District Court of Appeal which has construed the statute as establishing machinery for providing a forum with due process restraints in which a law enforcement officer may test the validity of his termination from service. West v. State, Department of Criminal Law Enforcement, 371 So.2d 107 (Fla. 1st DCA 1978). Our interpretation is strengthened by the fact that the statute does not itself expressly provide even those minimal due process constraints which would be required if continuation of employment, entitlement to back pay and related rights were to be placed at issue, and thus at jeopardy, by such a hearing. The First District engrafted due process prerequisites on the statute; we decline to do so.

Further, the fact that the board is required to be composed of law enforcement personnel...